Partha Hue vs State Of West Bengal
2022 Latest Caselaw 2263 Cal

                       IN THE HIGH COURT AT CALCUTTA
                      CRIMINAL APPELLATE JURISDICTION
                             APPELLATE SIDE

The Hon'ble JUSTICE BIBEK CHAUDHURI

                             CRA 119 of 2019

                                Partha Hue
                                  -Versus-
                            State of West Bengal


     For the Petitioner:        Mr. Milon Mukherjee, Sr. Adv.,
                                Mr. Rahul Ganguly, Adv.


     For the State:             Mr. Swapan Banerjee, APP.,
                                Mr. Suman, Adv.


Heard on: 31 March, 2022.
Judgment on: 21 April, 2022.


BIBEK CHAUDHURI, J. : -

1.

Judgment and order of conviction dated 22nd January, 2019,

passed by the learned Additional Sessions Judge, 1st Court at Sealdah in

Special case no. 48 of 2018, convicting thereby the appellant for

commission of an offence punishable under Section 10 of the Protection of

Children from Sexual Offences Act, 2012, hereafter described as the

POCSO Act for short, and sentencing him to suffer imprisonment for five

years and to pay fine of Rs.50,000/- in default to suffer rigorous

imprisonment for three months more, is under challenge in the instant

appeal.

2. On 24th September, 2018, one Sahanaz Begum, lodged a written

complaint before the Officer-in-Charge of Beniapukur Police Station

alleging, inter alia, that she took her minor grand-daughter aged about 8

years who was suffering from piles for medical treatment to the chamber

of one homeopath practitioner, namely Dr. Partha Hue, the appellant

herein. The appellant medically examined the granddaughter of the de

facto complainant and prescribed some medicine. When the patient and

the de facto complainant were about to leave the chamber of the doctor,

the doctor called the granddaughter of the de facto complainant in his

anti-chamber, covered the door with curtain and examined her again.

Suddenly, the granddaughter of the de facto complainant cried out and

ran away from the doctor's chamber out of fear. The de facto complainant

asked her as to why she left the chamber of the doctor in such a manner,

the said granddaughter told her that the doctor touched her private part

in the name of medical examination. Immediately the de facto

complainant called her daughter i.e the mother of the victim girl. Local

people also assembled in front of the chamber of the said doctor.

Subsequently, the de facto complainant came to the police station and

submitted the complaint before the Officer-in-Charge of the jurisdictional

police station, on the basis of which Beniapukur PS Case No.339 dated

24th September, 2018, was registered.

3. Investigation of the case culminated in filing charge sheet against

the appellant under various penal provisions of the IPC and Section 6 of

the POCSO Act. The appellant faced trial under the charge of Section

376(2)(i) of the IPC and Section 6 of the POCSO Act. The trial court on

completion of trial convicted the appellant under Section 10 of the POCSO

Act and sentenced him accordingly. Hence, the instant appeal.

4. It is further submitted by Mr. Milan Mukherjee, learned senior

counsel on behalf of the appellant that during trial, prosecution examined

13 witnesses amongst them PW1 is the victim girl, PW3 Sahanaz Begum

is the grandmother of the victim girl and de facto complainant of this

case. PW2 Prakriti Ranjan Sasmal is a Medical Officer posted at Calcutta

National Medical College and Hospital. He medically examined the victim

girl on 25th September 2018, and submitted the medico legal examination

report during investigation of the case. PW4 Md. Yunis and PW5 Md.

Sabbir Ahamed are two homeopath doctors who used to practice their

profession in the chamber where the appellant used to practice. PW6 is

the mother of the de facto complainant. PW7 Asif Aftab is the owner of the

premises no.18, Noor Ali Lane where the appellant used to run his

chamber. Evidence of PW8 Quazi Abedur Rahaman is of no importance

because his evidence is in the nature of hearsay. PW 9 Sankari Sardar is

a lady constable of police and PW13 Aninda Sundar Giri is the

Investigating Officer. PW10 Abdul Samin is the scribe of the written

complaint. It is also pointed out by Mr. Mukherjee that during

investigation the written complaint, FIR, medico legal examination report

and statement of the victim girl recorded under Section 164 of the Code of

Criminal Procedure were exhibited.

5. After the witnesses being introduced by the learned senior counsel

on behalf of the appellant he takes me to the contents of the written

complaint. In the written complaint it was stated by the de facto

complainant that her granddaughter was suffering from piles. However, in

her evidence as PW1 the victim girl stated that on 24th September, 2018,

at about 7pm she went to doctor's chamber for medical examination as

she was feeling burning sensation on her stomach. She also stated that

the doctor examined her and prescribed medicine. When they were

leaving the doctor's chamber, the doctor again called them and went to

examine her medically. At that time her grandmother was waiting outside.

The doctor took her inside his chamber and on the pretext of medical

examination he inserted his finger on her private part. In her cross

examination the victim admitted that after initial medical examination

they paid a sum of Rs. 70/- to the doctor, while he was demanding a sum

of Rs. 100/-. The grandmother of the victim girl could not pay the balance

sum of Rs.30/-. Over the said issue hot altercation started between the

doctor and her grandmother. It is also pointed out by Mr .Mukherjee that

the victim girl clearly admitted in her cross examination that she was

tutored by her mother for giving deposition. Thus, it is pointed out by Mr.

Mukherjee that the evidence of victim girl cannot be accepted as

trustworthy, cogent and free from any blemish because she told the name

of different ailments in which she was suffering and she was tutored by

her mother.

6. Mr. Mukherjee next draws my attention to the evidence of de facto

complainant who is the grandmother of the victim girl. In her evidence

she admitted that the appellant demanded a sum of Rs.100/- as his

professional fees but she could pay only Rs.70/- and a sum of Rs.30/-

was due. Over the said issue the appellant raised an objection and an

altercation started between them. In her cross examination she further

admitted that though in the written complaint, the de facto complainant

stated that the victim was suffering from piles but in her evidence as well

as before the Investigating Officer she stated that the victim was suffering

from stomach pain. It is submitted by Mr. Mukherjee that both the victim

and the de facto complainant was tutored to say that the victim was

suffering from stomach pain at the relevant point of time namely to

aggravate the case against the appellant. It is further submitted by Mr.

Mukherjee, that the alleged incident took place on 24th September, 2018,

the victim girl was medically examined by PW2 on 25th September, 2018,

at Calcutta National Medical College and Hospital, the medical officer did

not find any injury in any part of the body of the victim girl. Had there

been a case of forceful insertion of finger in the private part of the victim,

there would have been a strong possibility of receiving injury by the victim

girl. In view of such circumstances the evidence of the victim girl cannot

be the basis of conviction against the appellant. Mr. Mukherjee, admits

the principle of appreciation of evidence of a victim of the offence of sexual

abuse. The victim is considered to be the best witness of the occurrence.

Her evidence cannot be thrown away as the testimony of an interested

witness. If the evidence of the victim appear to be sterling quality and free

from all contradictions, her evidence may be the sole basis for conviction

of the perpetrator of offence. However, in the instant case the victim's

evidence is far from trustworthy.

7. Mr. Mukherjee, further refers to the evidence of PW4 Md. Yunus

and PW5 Md. Sabbir Ahamed. Both the witnesses are homeopath doctors

who used to practice in the same chamber where the appellant used to

practice. They did not support the prosecution case. The de facto

complainant stated in her evidence that after the alleged incident local

people assembled at the place of occurrence and they ransacked the said

chamber of the appellant. However, during investigation, the Investigating

Officer did not examine any of such local witnesses to get corroboration of

the incident. The learned Trial Judge convicted the appellant only on

surmises and conjectures. Therefore, Mr. Mukherjee has prayed for

acquittal of the appellant.

8. The learned Public Prosecutor-in-charge on the other hand,

supports the prosecution case and the judgment pronounced by the

learned trial court.

9. Having heard the learned counsels for the parties and on careful

perusal of the entire materials on record let me consider the evidence on

record independently to come to a finding as to whether the order of

conviction passed against the appellant is justified or not?

10. From the written complaint, it is found that the victim girl was

suffering from piles. In order to treat piles, per rectal examination of the

patient is absolutely necessary otherwise it cannot be clinically

determined as to whether a patient is suffering from piles or not. Even

assuming that the victim girl was medically examined twice by the

Medical Officer when she attended the doctor with history of piles. The

appellant might clinically examine the victim girl as per the established

norm of clinical examination. A little girl of 8 years might think at the

time of her medical examination that she was inappropriately touched but

for such reason a Medical Officer cannot be held guilty under Section 10

of the POCSO Act.

11. The learned Trial proceeded with the assumption that the appellant

has committed the offence. He decided against the appellant even before

consideration of evidence. I am tempted to replicate the first paragraph of

the trial court's judgment:-

"1. PREFACE

This is the barbarity, inhuman activism of a Doctor upon an

innocent victim-child of just eight years, who went to the

Doctor's chamber in order to get her treatment and after

examination is over the victim was called inside of chamber

keeping outside the guardian and inside the chamber the

Doctor assaulted her sexually by fingering. The case at hand

at glaring examples in between them turned mischievous and

unstable as well where the victim-child has been passing her

days with traumatic obligation since after the incident. It is

heinous crime. This case has been matured on the basis of

the written complaint dated 24.09.2018 lodged by the mother

of the victim before the OC Beniapukur PS."

12. From the preface of the impugned judgment, it is easily presumed

by an ordinary man of prudence that the learned trial judge was

overwhelmed by the allegation made out in the written complaint and the

tone and tenor of the introductory paragraph of the judgment leads one to

understand that the accused/appellant was held to be guilty even before

appreciation of evidence on record by the learned court below.

13. It is needless to say that the trial court is expected to use self

restrain while recording such findings, without considering the evidence

adduced by the witnesses on behalf of the prosecution and the specific

defence taken by the accused. Since the accused is a practicing doctor,

the learned trial judge held even without considering the evidence that he

had committed a barbaric act injuring the conscience of human mind and

causing grave harm to a minor girl. It is incumbent upon a trial judge to

exercise proper restrain in making such damaging observation. The

observations must strictly be limited to the fair and impartial decision of

the case. The learned trial judge abandoned judicial approach, allowed

extraneous considerations to possess his mind and made unnecessary

remark in the introductory paragraph of the impugned judgment without

evidence to support such finding. Such remarks were not necessary for

adjudication of the case. Of course a judge is entitled to express his

opinion about a particular incident, but such opinion should be

expressed in temperate language usually associated with and reflecting

the impartial dignity of judicial restraint. The strong language used in

condemning the accused and otherwise casting aspersion to him without

examination of evidence on record are unnecessary, uncalled for and

cannot be approved.

14. For the reasons stated above the remarks made by the learned trial

judge in the introductory paragraph of his judgment under the heading

'PREFACE' be expunged.

15. In view of the fact that as I have already held that the evidence on

record is not sufficient to record conviction against the accused, he is

entitled to be acquitted from the charge.

16. Accordingly the instant appeal is allowed on contest.

17. The order of conviction and sentence passed by the learned

Additional Sessions Judge, 1st Court at Sealdah in Special Case No.48 of

2018 is set aside.

18. The appellant be discharged from his bail bond.

19. Let a copy of this judgment along with the lower court record be

sent to the learned court below.

(Bibek Chaudhuri, J.)